The Court held that the Insurer did not have a duty to defend. All of the allegations in the action related to the Insureds’ son’s use and operation of an all-terrain vehicle, and fell within the exclusionary clause. The pleading of negligent supervision made against the Insureds was not an independent and discrete cause of action that could potentially trigger the Insurer’s duty to defend.

Weeks v. Aviva Canada Inc., [2006] N.S.J. No. 173, Nova Scotia Supreme Court

The Insureds brought an application for an order requiring the Insurer to defend them under a homeowner’s insurance policy with respect to a personal injury claim. The Plaintiff in the underlying action had been run down and severely injured by an all-terrain vehicle (“ATV”) owned by the Insureds and operated by the Insureds’ son.

The Plaintiffs alleged that the Insureds’ son was negligent in his use and operation of the ATV. The Plaintiffs alleged that the Insureds were negligent in supervising their son. The Statement of Claim also contained a subclause alleging “such other negligence as may appear at trial”.

Where there are two concurrent causes of action in a Statement of Claim and there is a possibility that one of them falls within the coverage, the Insurer has a duty to defend.

The Court held that the rote wording in the subclause alleging “such other negligence as may appear at trial” added nothing of substance to the other allegations in the Statement of Claim.

The Court further held that, under the circumstances, the pleading of negligent supervision was not an independent and discrete cause of action that could potentially trigger the Insurer’s duty to defend. It was difficult to see how there was any realistic possibility that the Insureds could be found liable for negligent supervision while at the same time their son be absolved of any finding of negligence in his operation of the ATV. The Insurer did not have a duty to defend.

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